People v. Acevedo, G007480
Decision Date | 12 December 1989 |
Docket Number | No. G007480,G007480 |
Court | California Court of Appeals Court of Appeals |
Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Steven ACEVEDO, Defendant and Appellant. |
Theodore A. Cohen, Beverly Hills, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Janelle B. Davis and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.
Charles Acevedo's motion to suppress was denied, and he pleaded guilty to possession of marijuana for sale. Under compulsion of United States Supreme Court authority, we agree the warrantless search of a lunch bag seized from the trunk of his car was unlawful and reverse accordingly.
In October 1987, federal drug enforcement agents in Hawaii seized a Federal Express package containing a cooler and nine clear bags of marijuana addressed to J.R. Daza at 805 West Stevens Avenue in Santa Ana. In cooperation with federal officials, Santa Ana police confirmed Daza's address and telephone number and left the package at the local Federal Express office for pickup.
Police followed Daza home after he retrieved the package. Daza left his apartment approximately 45 minutes later and discarded the wrapping and cardboard box in a trash bin. One of the surveilling officers went to obtain a search warrant for the apartment.
Within one-half hour, Acevedo's codefendant, Richard St. George, also walked out of the apartment, a blue knapsack on his back. Officers detained St. George, searched the knapsack, and found more than a pound of marijuana inside.
Within another half hour, an empty-handed Acevedo entered the apartment. He left ten minutes later carrying a brown lunch bag which appeared to be full. He placed the bag in the trunk of an automobile and drove away. Fearing the loss of evidence, police officers stopped the car, opened the trunk, searched the brown bag, and discovered marijuana. The search warrant for the apartment arrived soon after.
In the superior court, Acevedo contended the officers lacked probable cause to search the trunk of the car. He also argued the officers could not open the lunch bag without a warrant. We disagree with the first contention, but the second carries the day.
Acevedo relies on People v. Valdez (1987) 196 Cal.App.3d 799, 242 Cal.Rptr. 142 to support his claim that the trunk search was without probable cause. In Valdez a film canister containing contraband was suppressed because officers had no probable cause for its seizure: Nothing connected the defendant to the sale of illegal drugs; and a canister "is not a distinctive drug-carrying item equivalent to a heroin balloon, a paper bindle, or a marijuana-smelling brick-shaped package, which may be seized upon observation." (Id., at pp. 806-807, 242 Cal.Rptr. 142.) Here, however, there was more than a fair probability Acevedo was involved in dealing drugs and carrying marijuana in the lunch bag (Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527): Although the occupant of the apartment was not in, an empty-handed Acevedo entered within two hours of the arrival of a sizeable quantity of contraband and emerged with something in a brown paper bag which approximated the size of the wrapped packages officers knew contained marijuana. Accordingly, there was probable cause for a warrantless search of the trunk and seizure of the brown bag under the automobile exception to the Fourth Amendment. (See generally United States v. Ross (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572.)
But could the officers open the bag they lawfully seized? They could not without first obtaining a warrant.
That is the rule of a line of cases headed by United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538. There, federal agents had probable cause to believe marijuana was concealed in a footlocker located in the trunk of a car. The occupants were arrested, and the footlocker was seized and searched without a warrant. The Supreme Court found the search unlawful. There are, ruled the court, significantly greater privacy interests in personal luggage as opposed to cars: "Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects." (Id., at p. 13, 97 S.Ct. at p. 2484.)
In United States v. Ross, supra, 456 U.S. 798, 102 S.Ct. 2157, on the other hand, officers had probable cause to believe narcotics were being sold from the trunk of the defendant's vehicle. Police stopped the car, saw a bullet on the front seat, and retrieved a pistol from the glove compartment. The defendant was arrested, and officers opened the car's trunk and removed a brown paper bag. They searched it and found heroin. They discovered additional contraband in a zippered pouch. The Supreme Court upheld the warrantless search, distinguishing Chadwick on the basis that probable cause to search was limited to the footlocker in that case. In Ross, however, "police officers had probable cause to search respondent's entire vehicle." (Id., at p. 817, 102 S.Ct. at pp. 2168-2169, emphasis added.) 1
This distinction was more recently noted in United States v. Johns (1985) 469 U.S. 478, 105 S.Ct. 881, 83 L.Ed.2d 890. There, customs officers developed probable cause to believe marijuana had been smuggled into parked trucks at a remote private airstrip. Federal agents approached the trucks, detected the odor of marijuana, and saw packages likely to contain contraband. The packages were seized and searched without a warrant.
Chadwick was inapplicable, determined the Supreme Court, because the customs officers (Id., at pp. 482-483, 105 S.Ct. at p. 884.)
Shortly after Johns the Supreme Court divided equally in affirming without opinion a decision of the Oklahoma Court of Criminal Appeals to suppress evidence obtained under circumstances similar to ours. (Oklahoma v. Castleberry (1985) 471 U.S. 146, 105 S.Ct. 1859, 85 L.Ed.2d 112.) In Castleberry v. State (Okla.Crim.App.1984) 678 P.2d 720, police officers knew the defendant carried narcotics in blue suitcases in the trunk of a car. After arresting him, they opened the trunk, seized the suitcases, and searched them without a warrant. Relying on Chadwick and Sanders, the Oklahoma appellate panel determined the contraband should have been suppressed: (Id., at p. 724.)
The Ninth Circuit, on facts remarkably close to those of the present case, has also confirmed the continuing validity of the Chadwick- Ross distinction. In United States v. Salazar (9th Cir.1986) 805 F.2d 1394, 1396, police officers observed known drug dealers deliver suspicious-looking packages to others. The recipients were detained, and a search of the packages revealed cocaine. Officers then saw the dealers hand a brown shopping bag to Salazar, who placed the item in a locked car. Salazar was stopped as he drove away, and the bag was seized and searched. Citing Chadwick, the Court of Appeals concluded a warrantless search of the bag was unlawful: (Id., at p. 1397.)
We recognize the anomalous nature of the Ross- Chadwick dichotomy: If police have probable cause to believe contraband is concealed in a particular container, they must obtain a warrant before searching it, even when it is being stored in a vehicle. If the investigation has, for whatever reason, yet to focus on a particular container and there is only probable cause to believe the contraband is located somewhere in an automobile, officers may conduct a warrantless search of any container in the car that could reasonably conceal the evidence. The first situation was described by Justice Kaus in People v. Ruggles (1985) 39 Cal.3d 1, 216 Cal.Rptr. 88, 702 P.2d 170 as "type A" and the second "type B." The crucial distinction is that in a type A case "officers do not have probable cause to believe the vehicle itself--as distinguished from the container--contains seizable material." (Id., at p. 14, 216 Cal.Rptr. 88, 702 P.2d 170 (dis. opn. of Kaus, J.).)
One unfortunate feature of the rule is an incentive for police officers to withhold evidence related to probable cause in order to fit within the more generous confines of Ross. Despite misgivings concerning the continuing validity of Chadwick after Ross, we are in no position to ignore the Supreme Court's current mandate. This is a type A case; the officers had probable cause to believe marijuana would be found only in a brown lunch bag and nowhere else in the car. We are compelled to hold they should have obtained a search warrant before opening it.
The Attorney General raises several arguments in support of the search. He contends the warrant issue was waived. But the record...
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